We have defended employers on many claims and the key point we will ask you is “what is your overall objective”?
Often the objective is to defend the case and then look to settle it at the right opportunity. This means you can focus on your business rather than the Employment Tribunal case, which may take between 9 and 15 months or more to complete.
Employees no longer have to pay any ET fees to pursue their claim. As a result the numbers of ET claims made by employees are increasing quickly.
We can often settle a case before the claim is filed at the Employment Tribunal.
This can be achieved by following our advice and:
- making settlement offers directly using Settlement Agreements to obtain an efficient settlement without unnecessary management time – see our article explaining how Settlement Agreements can help you:
- engaging with ACAS through the Early Conciliation process between employer and employee to achieve settlement before it becomes a more costly Employment Tribunal dispute. Employees must register their ET claim at ACAS first to try Early Conciliation before the ET will process a claim :
- using confidential and impartial Workplace Mediation with an independent mediator – see our Article explaining more about why and how Workplace Mediation can help you. Our team have settled over 2,000 cases between them over the years using these different tactics. It is very unlikely that even if you successfully defend the claim that the ET Judge will order your employee to pay your costs. This is another sensible reason that it is best to explore settlement where possible.
Our experienced team have settled over 2,000 cases between them over the years using a combination of these different tactics as well as others.
It is very unlikely that even if you successfully defend the claim the ET Judge will order your employee to pay your costs. This is another sensible reason that it is best to explore settlement where possible. A typical project Scope to settle a claim would look like this:
- Ask you for your instructions and case details and documents,
- Review your case details and documents,
- Discuss any settlement amounts to be offered in the 1st settlement offer,
- Prepare 1st draft settlement agreement for your review,
- When you have reviewed it produce the 1st draft settlement agreement including your comments to be sent back to your employee,
- Advise you throughout the settlement negotiations until the case is settled.
Settlement negotiations before an employee asks for ACAS Early Conciliation usually last between 2 and 4 weeks. During this time you should be prepared for the employee being away sick or being less productive.
Negotiations via ACAS Early Conciliation usually last for 4 weeks but can be extended by a further 2 weeks to 6 weeks.
Price: £750 to £1,500 plus VAT depending upon how your employee and/or his/her adviser engages and negotiates.
Sometimes it is just not possible to settle a case in this way for a variety of reasons. For example the employee may not be prepared to accept the advice that he/she is receiving and thinks they will get more compensation at an ET. The employee then files an ET claim
In case this happens, below we have shared example Scope and Prices for:
- “Low Complexity” ET cases;
- “Medium Complexity” ET cases; and
- “High Complexity” ET cases.
Factors that could make a case more complex are:
- Your employee does not want to settle at a reasonable and fair level on the strength of his/her case and wants his or her “day in Court”. Employees do not have to pay ET fees so they are now more likely to file an ET claim and not settle earlier.
- Your employee does not take legal advice or only limited advice at certain times and claims at the ET as a litigant in person where he/she is not represented by a lawyer. Therefore as a litigant in person he/she will need more time to understand the process and we have to take more time to explain it to him/her.
- The type of employment law rights which your employee alleges have been breached eg unpaid wages, unfair dismissal and/or discrimination.
- If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim. This is more time intensive as a further hearing will be required.
- Complex preliminary issues such as whether the claimant is disabled (if this is not agreed by the parties). This is more time intensive as more analysis is required and a further hearing will be required.
- The number of witnesses and documents.
- If it is an automatic unfair dismissal claim e.g. if the employee claims to have been dismissed after blowing the whistle on their employer.
- Making or defending a costs application.
- Allegations of discrimination which are linked to the dismissal.
In these examples “employee” includes any worker or other person working with you either directly or via a limited company or other third party who seeks to claim employment and/or worker rights and protection
If the case proceeds to the ET by your employee filing a claim the case becomes more complex.
The Scope would then be:
- Reviewing Claim Form.
- Taking your updated instructions, review of detailed documents and emails and advising you on their merits and likely compensation (this is likely to be revisited throughout your case and will change as the case develops).
- Preparing response to a claim – called a Response or Defence on an ET form ET3.
- Preparing for (and attending or instructing your Barrister to attend) a Preliminary Hearing which takes place usually within 3 months of the ET3 being filed.
- Review the schedule of loss which your employee is required to submit to the ET showing what losses he/she alleges he/she has suffered.
- Taking witness statements, drafting statements and agreeing their content with witnesses.
- Exchanging documents with the lawyers for your employee and agreeing a bundle of documents required for the Judge at the Final Hearing.
- Reviewing and advising you on your employee’s witness statements.
- Agreeing a list of issues, a chronology and/or cast list with the lawyers representing the employee.
- Exploring settlement and negotiating settlement throughout this whole process.
- Preparation and attendance at the Final Hearing (usually 2 – 10 days for more complex cases), including instructions to your Barrister who will represent you at the ET.
- Dealing with any after Final Hearing steps eg organising the payment by you of any ET award to your employee sum or filing and agreeing any settlement if it is reached part-way through the Final Hearing as often happens.
The stages set out above are an indication and always some of stages above are not required. For example if we can help you settle the case part-way through the above Key Stages then you will only incur the fees upto that point.
It will usually take between 9 and 15 months for your case to get to the Final Hearing.
We offer the following fee ranges as examples:
Low Complexity case
Eg claim for unpaid wages: £3,500 – £7,000 (plus VAT) plus fees for attendance at the Final Hearing and your Barrister fees.
Medium Complexity case
Eg. claim for unfair dismissal based on lack of proper dismissal process: £7,000 – £11,200 (excluding VAT) (plus VAT) plus fees for attendance at the Final Hearing and your Barrister fees.
High Complexity case
Eg. an unfair dismissal and a discrimination claim: £8,000 – £17,500 plus fees for attendance at the Final Hearing and your Barrister fees.
We will help you select a Barrister (also called Counsel) for your case. Counsel’s fees are estimated between £1,000 to £4,000 plus VAT per day (depending on experience of the advocate) for advising on your case, attending a Preliminary Hearing and Tribunal Hearing (including preparation) as necessary and are also £195 to £295 plus VAT per hour. We will always seek your Barrister’s advice on your case proceeding through the ET
There will be an additional fee for attending a Tribunal Hearing of £2,000 per day (excluding VAT) assuming a 7 hour day at the Tribunal.
Disbursements are costs related to your matter that are payable to third parties eg travel costs or experts reports. We handle the payment of the disbursements on your behalf to ensure a smoother process but will need those disbursements paid in advance by you before we pay them for you.
At the start of your case we will remind you to explore your funding options. Eg via any company insurance policy.